Occupiers’ liability: injury to independent contractor
Yates v National Trust
The Claimant was working with a team of tree surgeons run by Joe Jackman who were felling trees on land owned by the Defendant. Whether the Claimant was employed by Jackman, or was self-employed, was never established. While removing branches from a tree, about 50 feet above the ground, the Claimant fell sustaining serious injury. The Judge was not able, on the evidence, to establish precisely how the Claimant fell.
The choice of independent contractor
About two years before the accident, Jackman had been recommended to the Defendant by one of its tenants. One of the Defendant’s employees (who had limited qualification to cut down small trees) watched Jackman working. He inspected the summary of the qualification certificates which Jackman held and mistakenly thought that he held a certificate for felling medium sized trees and for tree dismantling. The employee knew that Jackman was not a member of a professional body. In his documentation he said that all work was carried out by “fully qualified and experienced arborists”. The employee inspected Jackman’s risk assessment and method statements which he considered were similar to those of other tree surgeons.
The employee knew that the Claimant was not qualified to sectionally fell the trunk of the tree, because of its size but the employee thought that the Claimant was qualified to remove branches from the tree and that Jackman would finish the job.
Duty of care
Nicol J concluded that the Defendant did not owe the Claimant a duty of care in its choice of Jackman as its independent contractor:
The Claimant alleged that the Defendant owed him a duty to take care in selecting Jackman as its independent contractor because he was working on the National Trust land and carrying out a dangerous activity. He alleged that the Defendant had not taken care to make sure that Jackman’s working methods were competent and safe. The Claimant relied on the earlier decision of the Court of Appeal in Bottomley v Todmorden Cricket Club . In that case the Todmorden Cricket Club hired contractors to provide a fireworks display on its land. Bottomley, who was helping the contractors with their show, was injured. The court held in favour of Bottomley because the contractors were carrying out an extra hazardous activity. The Claimant argued that he had a stronger case because, unlike in Bottomley, where the cricket club had no prior knowledge of Bottomley, here the Defendant knew that Jackman had instructed the Claimant to climb the tree and remove the branches.
It was clear that the Defendant owed a duty to the Claimant as a lawful visitor under the Occupiers’ Liability Act 1957, but this was not the relevant duty of care. The Claimant was not injured because of the state of the premises, but because of his activity as a tree surgeon.
Distinguishing the case from Bottomley, Nicol J considered that although tree surgery, which involves climbing into a tree, is hazardous, so too are other operations such as window cleaning. He noted that The Work at Height Regulations 2005 do place a duty on a non-employer (such as the Defendant) to take care to see that those working at height are safe, but for non-employers this duty is dependent on their exercising control over the worker and the Judge considered that the Defendant had no control over the Claimant in this case.
Although he considered that tree felling is hazardous, Nicol J held that it “is simply not in the same league as the pyrotechnic display in Bottomley”.
Had this been a claim under The Occupiers’ Liability Act 1957, the Defendant would have been able to rely on section 2(3)(b) of the Act which provides that an occupier “may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it”. The tree was diseased, and its condition meant that care needed to be taken in the choice of anchor points for anyone climbing the tree, but this was an example of the risks ordinary incident to the work of a tree surgeon climbing a tree. It would be anomalous if the Claimant were able to succeed in his common law claim where he would not be able to succeed if he had been able to bring his claim under the 1957 Act.
Would the defendant have been in breach had a duty of care existed?
The Claimant alleged that Jackman had been appointed in the face of internal guidance by the Defendant. For example he had not been asked to provide evidence that he had either public liability or employer’s liability insurance and he had not been asked to provide all relevant qualification certificates. Nicol J held, however, that by the time of the accident Jackman had undertaken a large number of jobs for the Defendant and had produced risk assessments and method statements, which were similar to those provided by other tree surgeons. All these factors enabled the Defendant to regard Jackman as a competent and safe contractor.
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